By Helen Coster
(Reuters) – Jury selection in Dominion Voting Systems’ defamation lawsuit against Fox Corp. is expected to begin on Thursday, as the court seeks 12 Delaware residents from a heavily-Democratic county to decide whether Fox News knowingly aired false claims about vote rigging in the 2020 U.S. presidential election.
Dominion says that Fox destroyed its business by knowingly airing debunked claims that its ballot counting machines were used to flip the results of the election against former President Donald Trump, a Republican who lost to Democrat Joe Biden.
The primary question for jurors will be whether Fox knowingly spread false information or recklessly disregarded the truth, the standard of “actual malice” Dominion must show to prevail.
Fox has argued in legal filings that Dominion’s $1.6 billion damages request is “untethered from reality” and designed to enrich the company’s investors.
The trial is widely viewed as a test of whether Fox’s coverage crossed the line between ethical journalism and the pursuit of ratings, as Dominion alleges and Fox denies.
Opening arguments in the five-week trial are expected to begin Monday.
The jury pool will be drawn from New Castle County, Delaware, where Democrats outnumber members of Trump’s Republican party more than two-to-one, according to the state’s Department of Elections. Democratic President Joe Biden represented Delaware in the U.S. Senate from 1973 until 2009.
Fox News and its conservative commentators were generally supportive of Trump during his presidency.
The county’s political composition is likely to “make the defense nervous, but left-leaning people also tend to be in favor of freedom of the press,” said Melissa Gomez, president of MMG Jury Consulting.
In Delaware, attorneys are not allowed to speak directly with potential jurors. Instead, Superior Court Judge Eric Davis — who is presiding over the case — will question them behind closed doors, using questions both sides have agreed to, including whether potential jurors have ever “worked in a newsroom” and whether “they regularly watch any Fox News programs.”
If a prospective juror responds “yes,” Davis may ask follow-up questions.
After the judge identifies 36 potential jurors, they will be brought to the court room and each side’s attorneys will have six “peremptory strikes,” in which they can dismiss a potential juror without giving a reason for doing so.
The streamlined process allows for jury selection to happen more quickly than it does in some other states: Davis has allotted two days.
But it also means both sides will have a harder time trying to identify prospective jurors’ political views, which could be relevant in this case, said Gomez.
“If you have a juror who believes that the election was stolen, it will influence their position,” said Gomez. “Will the facts of the case actually matter to them if they have that underlying belief?”
The questions are limited to prospective jurors’ experience rather than their attitudes.
Questions that capture prospective jurors’ attitudes are more likely to predict how a juror will lean in the case, according to Christina Marinakis, a jury consulting and strategy advisor at IMS Consulting and Expert Services.
“So you’re sort of shooting blind when it comes to jury selection,” Marinakis said.
Davis on Wednesday sanctioned Fox News, handing Dominion a fresh chance to gather evidence after Fox withheld records until the eve of trial, according to a source who is familiar with the case and was present during Wednesday’s court hearing.
Davis said he would also very likely tap an outside investigator to probe Fox’s late disclosure of the evidence and take whatever steps necessary to remedy the situation, which he described as troubling, the source said.
(Reporting by Helen Coster in New York; Editing by Noeleen Walder and Aurora Ellis)
